Cyber-libel and p2pnet
p2pnet.net News View:- The Rivoli, a well-known Toronto club, may seem like an unusual venue to consider Internet free speech. Yet, later this week, it will play host to a fundraiser in support of P2Pnet.net, a British Columbia-based website that is being sued for defamation for comments posted on the site by its readers.
The suit, launched by Sharman Networks’ Nikki Hemming, has attracted considerable attention because of the parties involved (Sharman Networks is the owner of Kazaa, the peer-to-peer file sharing service that last week agreed to pay the entertainment industry more than $100 million to settle ongoing litigation) and because it highlights the vulnerability of thousands of Canadians to defamation lawsuits merely for providing access to other people’s comments.
Both Sharman Networks and Hemming sued P2Pnet last spring, claiming that an article and accompanying comments posted by readers of the site were libelous. Jon Newton, the owner of the site, has vigorously disputed the suit, pointing to the need to protect free speech and to ensure that defamation laws cannot be used as swords to create an online chill.
Sharman Networks recently dropped its claim, however the Hemming suit continues.
The case places the spotlight on the liability of Internet intermediaries. The importance of the issue extends well beyond just Internet service providers – corporate websites that allow for user feedback, education websites featuring chatrooms, or even individual bloggers who permit comments face the prospect of demands to remove content that is alleged to violate the law.
The difficult question is not whether these sites and services have the right to voluntarily remove offending content if they so choose – no one doubts that they do – but rather whether sites can be compelled to remove allegedly unlawful or infringing content under threat of potential legal liability.
The answer is not as straightforward as one might expect since Canadian law varies depending on the type of content or the nature of the allegations. In the case of child pornography, the Criminal Code does not require a site to remove content based merely on an unproven allegation. Instead, sites can only be compelled to remove such content under a court order. The same is true for other unlawful content such as hate speech.
Allegations of copyright infringement similarly do not require a site to remove contested content. Liability would depend on whether the site can be said to have authorized visitors to infringe copyright.
The Supreme Court of Canada has set a high threshold to determine when a party “authorizes” infringement. Merely hosting content, even after being made aware of an unproven infringement allegation, is unlikely to meet that standard.
Moreover, Canadian content owners and ISPs have operated under a voluntary “notice and notice” system for the past few years whereby content owners can forward allegations of infringement to an ISP, which in turn forwards the allegation to its subscriber (whose identify is not revealed). An ISP would typically only face liability if it failed to abide by a court order to remove content.
The role of judicial oversight for illegal and infringing content in Canada is essential, since it strikes a balance between preserving free speech on the one hand and ensuring that harmful content can be taken offline in appropriate circumstances on the other.
However, as P2Pnet has learned to its chagrin, allegations of defamation are the exception to the rule. Under current Canadian law, intermediaries can face potential liability for failing to remove allegedly defamatory content once they receive notification of such a claim, even without court oversight.
As a result, many ISPs and websites remove content in response to unproven claims, even if they privately doubt that the content is indeed defamatory. From the company’s perspective, there is no legal risk to remove the content, yet there is potentially significant risk for failing to do so.
Given how easily content can be forced off the Internet with claims of defamation, the law creates a significant chill on free speech in Canada. Intermediaries are understandably reluctant to ignore threats of litigation, yet without a legal safe harbour that protects them from liability, it is likely that the number of questionable defamation claims will continue to rise.
Addressing the free speech chill would require legislative change. For example, the United States enacted a law 10 years ago that provides broad immunity for intermediaries that host third-party content. That provision has since been used dozens of times to immunize ISPs, large companies such as Amazon.com, and small websites that could ill-afford to fight legal challenges.
A similar provision in Canada would protect sites such as P2Pnet, as well as the thousands of Canadian ISPs, websites and bloggers, who are contributing to a robust online dialogue, but today find themselves vulnerable to lawsuits whose primary purpose may be to suppress legitimate speech.
Michael Geist
[Geist is the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa. He can be reached by email at mgeist[at]uottawa.ca and is on-line at www.michaelgeist.ca.]
[NOTE: This column is also being carried by The Toronto Star, as well as the BBC in England, and will appear in The Ottawa Citizen tomorrow.]
August 1st, 2006 at 11:35 am
I’m surprised to see that the ISP is not helping you cover cost for this.. It actually seems in their best interest to be involved and something done with these out-dated laws.
A shadowy side figure… kinda like kaza is with hemming
August 1st, 2006 at 2:22 pm
The P2PNet ISP is in America, as far as I know.
August 1st, 2006 at 8:10 pm
ummm he is a she… I think, hard to tell from the pics…
August 1st, 2006 at 8:10 pm
nice try nikki!
you want to raise another case with this post by yourself?
Thats clever!
This way you can stay in the press.
August 2nd, 2006 at 3:34 am
The article was well written.
“Under current Canadian law, intermediaries can face potential liability for failing to remove allegedly defamatory content once they receive notification of such a claim, even without court oversight.”
This doesn’t sound right to me. Usually people are only required to respond to court orders. Canada is a nation of laws so I would assume that it would take a court order.
Regardless p2pnet.net is hosted in America, so that means that there’s no need for the webhoster to worry.
August 2nd, 2006 at 3:46 pm
I have to kinda agree.. well said.
August 2nd, 2006 at 7:10 pm
I still see you
August 2nd, 2006 at 11:27 pm
a) who’s Gachnar?
b) I swear it wasnt him/her – it was I: I just think its time to exercise a little self control and focus on helping Jon rather than deliberately making things worse. Just my opinion.
August 3rd, 2006 at 11:17 am
I made a reply to the gachner reply as well, and i’m not gachner.. actually I’m the one who Emailed about 20-lawyers and rights groups… (jon may know who I am By name… and its not gachner)
I too think the post of calling sumone a child molester and crack addict is a little..hmmm… “off”, and childish (my opinion). But if my opinion of disagreeing with a post about someone sleeping with kids and doing crack is going to get me called a troll, not much I can say… each to their own… Maybe you can start a different web site for the people who wants to discuss crack addicts and people sleeping with kids. Or i can just stick to reading website articles and user comments more to my taste.
whatever floats your boat… But your boat has a slow leak.
August 8th, 2006 at 12:10 pm
“Jon,
If you believe in free speech why randomly select posts from posters and delete them at later dates. Surely this is obvious that when there is a post that may comment on your sponsors (read: supposed ad\\\’s) they seem to miraculously dissapear! How does this help the cause for free speech! ”
Hi.
As someone who is here everyday, several times a day I can
state that the missing posts are, in fact, spam link posts.
Garbage. I think you know that because you are the one posting
them, so that they will be deleted, so you can make an issue
out of it. You must be that jerk people are calling gachnar.
If the only life you have is to hate a website, you should probably
just jump off a bridge,
August 8th, 2006 at 8:50 pm
A question came up in the CLUE general discussion forum about the two different issues that Jon is bringing forward. One issue is the reverse-onus on defamation (guilty until proven innocent) which contradicts how the law normally works, and the question of anonymous speech.
I believe it is important for people to separate the two. Whether or not you believe in fully anonymous speech or not you should still support the call bring defamation law in line with all other laws which presume a defendant is innocent until there is proof that they wronged someone or broke the law.
Some example letters from the forum:
http://www.cluecan.ca/pipermail/discuss/2006-August/000726.html
http://www.cluecan.ca/pipermail/discuss/2006-August/000733.html
http://www.cluecan.ca/pipermail/discuss/2006-August/000736.html
http://www.cluecan.ca/pipermail/discuss/2006-August/000737.html
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–
kdsde
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